Citation Nr: 0606081
Decision Date: 03/02/06 Archive Date: 03/14/06
DOCKET NO. 04-27 544 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to service connection for the residuals of a
right knee injury.
REPRESENTATION
Appellant represented by: Oklahoma Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. J. Vecchiollo
INTRODUCTION
The veteran had active service from October 1950 to November
1952.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a June 2003 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Muskogee,
Oklahoma. In April 2005, the veteran testified at a hearing
at the RO before the undersigned.
The Board remanded the claim to the RO in June 2005 for
further development and consideration.
This case was advanced on the docket pursuant to 38 C.F.R. §
20.900(c) (2005).
FINDING OF FACT
The objective and probative medical evidence of record
preponderates against a finding that any currently diagnosed
mild degenerative joint disease of the right knee is related
to the veteran's period of active military service.
CONCLUSION OF LAW
Residuals of a right knee injury were not incurred in or
aggravated by service, and osteoarthritis may not be presumed
to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112,
1113, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38
C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duty to Notify and Assist
VA has a duty to assist the appellant in the development of
facts pertinent to his claims. On November 9, 2000, the
President signed into law the Veterans Claims Assistance Act
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096. This law
redefines the obligations of VA with respect to the duty to
assist and includes an enhanced duty to notify a claimant as
to the information and evidence necessary to substantiate a
claim for VA benefits.
First, VA has a duty to notify the appellant of any
information and evidence needed to substantiate and complete
a claim. 38 U.S.C.A. §§ 5102, 5103; 38 C.F.R. § 3.159(b)
(2005). Information means non-evidentiary facts, such as the
claimant's address and Social Security number or the name and
address of a medical care provider who may have evidence
pertinent to the claim. See 38 C.F.R. § 3.159(a)(5) (2005).
The Board notes that to be consistent with 38 U.S.C. §
5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1)
inform the claimant about the information and evidence not of
record that is necessary to substantiate the claim; (2)
inform the claimant about the information and evidence that
VA will seek to provide; (3) inform the claimant about the
information and evidence the claimant is expected to provide;
and (4) request or tell the claimant to provide any evidence
in the claimant's possession that pertains to the claim, or
something to the effect that the claimant should "give us
everything you've got pertaining to your claim(s)." This new
"fourth element" of the notice requirement comes from the
language of 38 C.F.R. § 3.159(b)(1).
The Board concludes that the RO letters sent in April 2003,
February 2005, and June 2005, as well as the May 2004
statement of the case (SOC) and February 2006 supplemental
statement of the case (SSOC), adequately informed the veteran
of the information and evidence needed to substantiate his
claim for service connection, complied with VA's notification
requirements and set forth the laws and regulations
applicable to his claim. In sum, the veteran was notified
and aware of the evidence needed to substantiate his claim,
and the avenues through which he might obtain such evidence,
and of the allocation of responsibilities between himself and
VA in obtaining such evidence. See Quartuccio v. Principi,
16 Vet. App. 183 (2002).
In Pelegrini v. Principi, 18 Vet. App. 112 (2004) the U.S.
Court of Appeals for Veterans' Claims (Court) held that a
VCAA notice must be provided to a claimant before the initial
unfavorable RO decision on claim for VA benefits. VCAA
notice was provided to the veteran prior to the June 2003 RO
decision that is the subject of this appeal. Additionally,
the veteran has been presented subsequent opportunities to
present any evidence in his possession or that he could
obtain that would substantiate his claims. Thus, the Board
finds that the veteran received VCAA notice at the required
time in this case. See e.g., Mayfield v. Nicholson, 19 Vet.
App. 103 (2005) (All the above notice documents must be read
in the context of prior, relatively contemporaneous
communications from the RO).
Second, VA has a duty to assist the veteran in obtaining
evidence necessary to substantiate the claims. 38 U.S.C.A. §
5103A; 38 C.F.R. § 3.159(c) (2005). Where, as here, the
service medical records are presumed lost or destroyed,
through no fault of the veteran, the Board's obligation to
explain its findings and conclusions, and to consider
carefully the benefit of the doubt rule, is heightened. See,
e.g., O'Hare v. Derwinski, 1 Vet. App. 365 (1991). This
heightened duty includes the obligation to search for
alternate medical records. Moore v. Derwinski, 1 Vet. App.
401 (1991); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992).
It is further noted, however, that the case law does not
lower the legal standard for proving a claim for service
connection, but rather increases the Board's obligation to
evaluate and discuss in its decision all of the evidence that
may be favorable to the claimant. See Russo v. Brown, 9 Vet.
App. 46 (1996).
The record reflects that the RO contacted National Personnel
Records Center (NPRC) in an attempt to locate any available
records, including U.S. Surgeon General's Office reports
(morning reports), and to ascertain if the veteran's records
could be reconstructed. The only records available were some
daily sick reports of the veteran's unit, dated in 1952,
discussed below.
The Board finds that all efforts to obtain the service
medical records have been made, and the documentation of
responses to the searches has met the heightened standard for
searches for evidence known to have been in the government's
possession. The RO contacted the veteran and asked him to
identify all medical providers who treated him for a right
knee disability, as well as identifying information. The
veteran stated that he was hospitalized for 2 hours at Kaiser
Permanente Hospital in California, in 1976 because of his
right knee condition, and was given pain medication and
crutches. In May 2004 correspondence, that hospital stated
that the veteran's medical records were destroyed in October
2002. The veteran also stated that he was recently treated
at the VA hospital in Bonham, Texas, for his knee problems
and underwent x-rays of his right knee, right hip, and back
on March 29, 2005. These records were obtained. During his
2005 hearing, the veteran stated that he had no additional
evidence to submit. Therefore, the RO has obtained or
attempted to obtain all identified evidence.
As to any duty to provide an examination and/or seek a
medical opinion for the veteran's claims, the Board notes
that in the case of a claim for disability compensation the
assistance provided to the claimant shall include providing a
medical examination or obtaining a medical opinion when such
examination or opinion is necessary to make a decision on the
claim. An examination or opinion shall be treated as being
necessary to make a decision on the claim if the evidence of
record, taking into consideration all information and lay or
medical evidence (including statements of the claimant)
contains competent evidence that the veteran has a current
disability, or persistent or recurring symptoms of
disability; and indicates that the disability or symptoms may
be associated with the claimant's act of service; but does
not contain sufficient medical evidence for VA to make a
decision on the claim. See 38 U.S.C. § 5103A(d) (West 2002);
38 C.F.R. § 3.159(c)(4). The VCAA duty to assist regarding
the necessity of a medical examination did not attach where a
veteran simply relates disorders to military service and
there is no medical opinion relating them to service or other
competent evidence he suffered an event or injury that may be
associated with symptoms he reported.. In this case, there
is no reasonable possibility that an examination would aid in
substantiating the veteran's claim for service connection for
a right knee injury, as there are no indications of a right
knee injury prior to 2003 when the veteran filed his claim,
or a medical opinion relating his current right knee
condition to service from 1950 to 1952. See Duenas v.
Principi, 18 Vet. App. 512, 518 (2004). As such, the record
is sufficient for a decision.
II. Pertinent Laws, Factual Background, and Legal Analysis
The veteran contends that in the spring of 1952, while
stationed in Germany, he injured his right knee while playing
softball. He asserts that he was taken to a private German
clinic, was not seen by a physician, was given one week's bed
rest at the clinic, and used crutches for two or three weeks
thereafter. He notes that he next sought treatment for the
right knee injury when he was hospitalized for 2 hours at
Kaiser Permanente Hospital in California in 1976, and was
given pain medication and crutches. He notes that VA medical
personnel in 2003 diagnosed a right knee condition and that
he had right knee pain while lying in bed since separation
from service. He states that he should not be penalized
because his service medical records and 1976 private medical
records were destroyed.
To establish service connection for a claimed disability, the
facts must demonstrate that a disease or injury resulting in
current disability was incurred in active military service
or, if pre-existing active service, was aggravated therein.
38 U.S.C.A. § 1110. Service connection may also be granted
for certain chronic diseases, to include arthritis, which are
manifested to a degree of 10 percent disabling within one
year following the veteran's release from active duty. 38
U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307,
3.309. While the disease need not be diagnosed within the
presumptive period, it must be shown, by acceptable lay or
medical evidence, that there were characteristic
manifestations of the disease to the required degree. Id.
There must be medical evidence of a current disability;
medical, or in certain circumstances, lay evidence of in-
service incurrence or aggravation of a disease or injury; and
medical evidence of a nexus between the claimed in-service
disease or injury and the current disability. See Hickson v.
West, 12 Vet. App. 247, 253 (1999). Where the determinative
issue involves medical causation or a medical diagnosis,
there must be competent medical evidence to the effect that
the claim is plausible; lay assertions of medical status do
not constitute competent medical evidence. Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992). See also Routen v.
Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is
generally not capable of opining on matters requiring medical
knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434
(Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). A
determination as to whether these requirements are met is
based on an analysis of all the evidence of record and the
evaluation of its credibility and probative value. See
Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).
The mere fact of an in-service disease or injury is not
enough; there must be chronic disability resulting from that
disease or injury. If there is no evidence of a chronic
condition during service, or an applicable presumption
period, then a showing of continuity of symptomatology after
service is required to support the claim. See 38 C.F.R. §
3.303(b). Evidence of a chronic condition must be medical,
unless it relates to a condition to which lay observation is
competent. See Savage v. Gober, 10 Vet. App. 488, 495-98
(1997). If service connection is established by continuity
of symptomatology, there must be medical evidence that
relates a current condition to that symptomatology. Id.
Regulations also provide that service connection may be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d).
When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C. § 5107(b)(West 2002); see also
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
As noted above, in light of the veteran's missing SMRs,
judicial case law increases the Board's obligation to
evaluate and discuss in its decision all of the evidence that
may be favorable to the appellant; however, it does not lower
the legal standard for proving a claim for service
connection. See Russo v. Brown, supra. It is indeed
unfortunate that the veteran's service medical records are
unavailable. However, a grant of service connection requires
an etiological link between the claimed in-service injury and
the currently claimed disability.
Although the service medical records are not available for
review, the daily sick report for the veteran's unit from
1952 has been obtained. The report notes that the veteran
reported sick on May 28, July 2, 7, 8, and 9, and August 2.
The nature of the illness or injury was not specified, but it
was noted that the veteran sustained the condition(s) in the
line of duty and the immediate disposition was that he was
returned to duty. In light of these records, the Board
places little probative weight on the veteran's assertions
that he was bed ridden for a week at a German clinic in the
spring of 1952 and subsequently used crutches for two to
three weeks, as all the entries in the sick report for 1952
show his immediate return to duty.
The only existing objective medical evidence of record, a
post-service VA medical record, shows that an X-ray report of
the right knee dated in March 2005 diagnosed mild
degenerative changes. According to this outpatient record,
the veteran stated that he hurt his right knee in service and
that it bothered him every night. There are no post-service
medical records to suggest continuity of symptomatology
following separation from service. See 3.303(b); Savage,
supra. The objective and probative medical evidence of
record merely shows that over 50 years following discharge
from service, the veteran was diagnosed with mild
degenerative changes of the right knee. Moreover, the
clinician who prepared the March 2005 post-service private
medical statement did not indicate that there was a nexus
between the veteran's service and the current diagnosis of
right knee arthritis. There is no competent evidence linking
any current right knee condition to service. See 38 C.F.R. §
3.303.
While the Board is sympathetic to the veteran's beliefs that
his current right knee condition is related to service, he is
not competent to offer opinions on medical diagnosis or
causation, and the Board may not accept unsupported lay
speculation with regard to medical issues. See Espiritu v.
Derwinski, 2 Vet. App. 482 (1992); Moray v. Brown, 5 Vet.
App. 211 (1993).
As the preponderance of the evidence is against the veteran's
claim for service connection for residuals of a right knee
injury, the benefit of the doubt doctrine is not for
application. 38 U.S.C.A. § 5107(b); also see generally,
Gilbert v. Derwinski, supra; Ortiz v. Principi, 274 F. 3d
1361 (Fed. Cir. 2001).
ORDER
Entitlement to service connection for a residuals of a right
knee injury is denied.
____________________________________________
D. J. DRUCKER
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs